Windmill hearing canceled

reverted back to county court

February 05, 2004|By VICKI ROCK, Daily American Staff Writer

Monday's scheduled public hearing before the Somerset County Airport Zoning Ordinance Board of Adjustment for Stonycreek Windpower LLC has been canceled because the issue will go back to the Somerset County Court.

Twenty-two turbines are out of the area near the Somerset County Airport. But eight turbines may be in restricted air space.

The Federal Aviation Administration decided the proposed wind farm poses no threat to air traffic, but the Somerset County Airport Zoning Ordinance Board of Adjustment denied the variance for those eight turbines.

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Stonycreek Windpower appealed the denial to the Somerset County Court.

Somerset County Commissioners argued they were not given notice of the FAA's determination.

Apparently, Judge Kim R. Gibson mistakenly thought the county had not been given notice of the variance request, Daniel Rullo, county solicitor, said. Gibson referred the issue back to the board of adjustment.

"We had that (notice), what we didn't have was notice of the FAA's decision," Rullo said. "We don't feel anything would be accomplished by going back to the board on the variance. We are now stipulating in writing that we had notice of the variance request and asking the court to rule on the issue, does the FAA pre-empt the board of adjustment?"

Because Gibson is now a federal district court judge in Johnstown, President Judge Eugene E. Fike has agreed to take the case.

He will read the briefs and transcript and decide if he can make a ruling on the record or if he needs to hear more arguments, said Robert Boose II, the adjustment board's solicitor.

"Basically, we're back to where we were when Lois (Witt Geary, attorney for Stonycreek Windpower) appealed it," he said.

In the appeal, Witt Geary argued the federal government has exclusive sovereignty of airspace in the United States. She also argued that no individual or group opposed to the project, including the commissioners and Somerset Aero Club, conducted an independent investigation or an independent aeronautical study of the effect of the project on safety to air navigation.

The appeal called the board's decision arbitrary, capricious and contrary to law.